Somanath @ Sambhunath @ vs State Of Odisha
2023 Latest Caselaw 9074 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                        JCRLA No.65 of 2018

  In the matter of an Appeal under Section 383 of the Code of
  Criminal Procedure, 1973 and from the judgment of conviction
  and order of sentence dated 27th April, 2018 passed by the learned
  Sessions Judge, Keonjhar, in Sessions Trial No.198 of 2016.
                             ----

      Somanath @ Sambhunath @                 ....          Appellant
      Kuntha Naik

                                 -versus-

      State of Odisha                         ....       Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

              For Appellant      -       Mr.Arunendra Mohanty
                                         (Advocate)

              For Respondent -           Mr.S.K. Nayak,
                                         Additional Government Counsel
  CORAM:
  MR. JUSTICE D.DASH
  DR. JUSTICE S.K. PANIGRAHI

  Date of Hearing : 04.07.2023       :      Date of Judgment:11.08.2023

D.Dash,J.     The Appellant, by filing this Appeal from inside the

jail, has called in question the judgment of conviction and order

of sentence dated 27th April, 2018 passed by the learned Sessions

Judge, Keonjhar, in Sessions Trial No.198 of 2016 arising out of

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G.R. Case No.542 of 2016 corresponding to Pandapada P.S. Case

No.30 of 2016 of the Court of the learned Sub-Divisional Judicial

Magistrate (S.D.J.M.), Keonjhar.

The Appellant (accused) thereunder has been convicted for

committing the offence under section 302 of the Indian Penal

Code, 1860 (for short, 8the IPC9). Accordingly, he has been

sentenced to undergo imprisonment for life and pay fine of

Rs.10,000/- (Rupees Ten Thousand) in default to undergo

rigorous imprisonment for one (1) year for the offence under

section 302 of the IPC.

2. Prosecution Case:-

On 27.04.2016, it was around 3.00 a.m., when the accused

and his parents were at home, the accused asked his mother,

namely, Boita Naik (deceased) to give him some money. Boita

when refused to part with money, it is said that the accused

assaulted on her head with tangia causing fatal injury. It is

further stated that the accused then fled from the house. The

father of the accused, namely, Raiaa Naik, seeing the incident

immediately carried the injured to the District Headquarters

Hospital (DHQ), Keonjhar and in course of her treatment, Boita

succumbed to injuries.

The written report to the above effect was lodged by the

father of the accused, who happens to the husband of the

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deceased (P.W.1) being scribe by one Nilambar Rana (P.W.11. The

report (Ext.6) being lodged with the Officer-in-Charge (O.I.C.)

attached to Pandapada, the O.I.C. (P.W.10) treated the same as

FIR, registered the case and took up investigation. He then

examined the informant (P.W.1) and the scribe of FIR (Ext.6), i.e.,

P.W.11. He proceeded to the spot and prepared the spot map

(Ext.7) at the spot, held inquest over the dead body of the

deceased in presence of the witnesses and prepared the inquest

report (Ext.1). The dead body lying in the D.H.Q, Hospital,

Keonjhar was sent for post mortem examination by issuing

necessary requisition. The incriminating articles were seized at

the spot under seizure list prepared by P.W.10.

On 29.04.2016, the accused was apprehended. It is said that

he then gave a statement that he had kept that tangia inside a

bush and was willing to lead the Investigation Officer (I.O.-

P.W.10) and those to that place of giving recovery of the same.

The statement, being recorded by P.W.10, it is stated that the

accused led P.W.10 and others near that bush and gave recovery

of that tangia, which was found to be stained with blood. The

tangia was then seized under seizure list (Ext.3/1) and statement

of leading to discovery was recorded (Ext.2/1). All those

incriminating articles were sent for chemical examination

through Court. On completion of the investigation, the I.O.

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(P.W.13) submitted the Final Form placing the accused to face the

Trial for commission of offence under section 302 of the IPC.

3. Learned S.D.J.M., Keonhar, on receipt of above Final Form,

took cognizance of the said offence and after observing all the

formalities, committed the case to the Court of Sessions. That is

how the Trial commenced by framing the charge for the aforesaid

offences against this accused.

4. In the Trial, the prosecution, in support of its case, has

examined in total eleven (11) witnesses. As already stated, P.W.1

is the husband of the father of the accused and has been

examined as the eye witness, who had lodged the FIR (Ext.6) and

P.W.11 is the scribe of the said F.I.R. P.W.2, who is the daughter

of P.W.1 and sister of the accused has been presented as an eye

witness to the occurrence whereas P.Ws.4, 5 & 5 are the three post

occurrence witnesses when P.W.6, being the witness to the

inquest, has been examined to prove the inquest report. P.Ws.7 &

8 have been brought to the witness box in proving the recovery

and seizure of that tangia said to have been made at the instance

of the accused. The Doctor, who had conducted the autopsy over

the dead body of the deceased is P.W.9 and the I.O is P.W.10.

Besides leading the evidence by examining the above

witnesses, the prosecution has also proved several documents,

which have been admitted in evidence and marked Exts.1 to 13.

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Out of those, the important are the FIR (Ext.6), the post mortem

report (Ext.4), inquest report (Ext.1) and the Chemical

Examination Report (Ext.14). The seizure lists have been proved

and marked Ext.3/1, Ext.9 and Ext.10.

5. The defence has not tendered any evidence in support of

the plea of denial and false implication.

6. Learned Counsel for the Appellant (accused), from the very

beginning, instead of attacking the finding as to the authorship of

the injury upon the deceased attributed to the accused as has

been recorded by the Trial Court, confined the submission that

viewing the happenings in the incident as also the subsequent

events, the relationship etc. when are kept in view with the fact

that the parties belong to S.T. community hailing from remote

rural background whose tamper usually run high and behaviour

for silly reasons, often becomes abnormal, the Trial Court ought

not to have convicted the accused for commission of offence

under section 302 of the IPC. He, therefore, urged for altercation

of conviction for commission of offence under section 302 of the

IPC to offence under section 304-I of the IPC and accordingly, he

contended that the accused be visited with the sentences

appropriate for the said offence.

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7. Learned Additional Government Advocate submitted all

favour of the finding returned by the Trial Court that the accused

is liable for commission of the offence under section 302 of the

I.P.C. He further submitted that the blow being by tangia, which

is a sharp cutting weapon, when has been given on the head of

the deceased, the Trial Court did commit no mistake in holding

the accused guilty for commission of the offence under section

302 of the IPC.

8. Keeping in view the submissions made, we have carefully

gone through the impugned judgment of conviction. We have

also travelled through the depositions of the witnesses examined

from the side of the prosecution as P.Ws.1 to 11 and have perused

the documents admitted in evidence marked as Exts.1 to 14.

9. In order to address the rival submission surrounding the

categorization of the offence for which the accused would be held

liable for the role played and the act done by him in the incident,

let us first have a glance at the evidence of P.W.1.

This P.W.1, as already stated, is the father of the accused

and the husband of the deceased. He has stated that the accused

asked his mother (deceased) to give him some money and when

the mother (deceased) refused to part with the money, the

accused assaulted her by means of tangia causing bleeding injury

on her head and soon thereafter, he left he house. Above being

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the evidence of this witness during trial, the story narrated in the

FIR (Ext.6) has to be looked into. In the FIR (Ext.6), it is not stated

that when the deceased refused to give money, as asked by the

accused, the accused assaulted the deceased. It has been the

narration in the FIR that for some domestic quarrel, the accused

being enraged, assaulted on the head of the deceased by that

tangia. Thus, it appears that the important fact as to how the

incident began as stated by P.W.1 during trial differs from what

he had narrated in the FIR (Ext.6). He now is giving a good bye to

the fact that there was any quarrel between the accused and the

deceased. It is also not stated therein as to for what reason, the

quarrel ensued. During examination in chief, when P.W.1 has

stated that the incident took place at home, during cross-

examination, he states that the accused assaulted his mother

(deceased) outside their house. Thus, a reasonable inference can

be drawn that the quarrel, having ensued in the house in course

of that, the accused and the deceased went outside the house.

P.W.2, the daughter of the deceased, although was

projected as an eye witness to the occurrence, has not so stated

during Trial. It is not the evidence of P.W.1 that the accused, from

the beginning, was carrying that tangia or that in course of

quarrel, he went to some place and brought that tangia to assault.

As per the evidence of the Doctor, conducting the autopsy over

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the dead body of the deceased, the deceased has sustained one

injury on her head over the parieto temporal region of 1 inch

above the upper margin of right ear. The parties are the members

of Scheduled Tribe and hail from rural pocket. Judicial notice can

be taken of the fact that ordinarily their temper run high and for

silly reason, they too behave abnormally. It is also not stated by

P.W.1 that accused, after giving the blow, had again attempted to

assault and that was warded off.

10. Taking a cumulative view of all these above circumstances

appearing in the evidence, as discussed; we are of the view that

the offence could be properly categorized as one punishable

under section 304-I of the IPC. We are thus of the considered

opinion that for the role played by the accused and the act done,

he would be liable for conviction under section 304-I of the IPC.

11. In that view of the matter, this Court, alters the conviction

under section 302 of the IPC to one under section 304-I of the IPC.

Consequently, the Appellant (accused) is sentenced to undergo

rigorous imprisonment for a period of ten (10) years for the said

offence.

12. With the above modification as to the judgment of

conviction and order of sentence dated 27th April, 2018 passed by

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the learned Sessions Judge, Keonjhar, in Sessions Trial No.198 of

2016, the Appeal stands disposed of.

(D. Dash), Judge.

Dr.S.K. Panigrahi, J. I Agree.

(Dr.S.K. Panigrahi), Judge.

Basu

Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 17-Aug-2023 16:49:27

JCRLA No.65 of 2018